the Possessor ought to protest for Non-payment before the Sun set CHAP. XXXIII Of the Leipzig Fairs Rule I. LEipzig hath three Fairs yearly the New Years the Jubilate and the Michaelmass Fair on which dayes or the dayes after according to the Old Stile the said Fairs begin they continue but eight dayes wherein they trade and buy and sell the first or second dayes after the Fairs are begun acceptance is demanded but if the Acceptant will he may delay acceptance till the Pay Week after the Fair which continues five dayes after the expiration of the aforesaid eight dayes II. The Possessor may if he will protest sooner but he must not send the Bill away till the Fair be wholly concluded but must wait to see if any appear to honour the Bill supra Protest no Protests are admitted of after ten a Clock at Night on the last day of the Fair and if the Possessor protest not before that time he loseth his hold that he had of the Drawer if none appear to make payment of a protested Bill within three dayes after the Fair is fully expired then may the Possessor with the first Post return the Bill with the Protest III. For Exchanges made at Amsterdam on Leipzig Bills must instantly be given but the Acceptant need not accept or declare whether he will or no till the Fair time here also Bills that are endorsed are admitted of IV. At Naumbrough is also yearly one Fair kept it begins on Peter and Pauls day and is by some called a Fourth Leipziger Fair in regard all the Leipzig Traders trade thither it continues eight dayes on the first and second dayes Acceptances are demanded and at the utmost all the Bills must be paid on the third of July but if protested the Bills are not returned till after the fifth of July and after that day if no payment follow the Bills and Protests must be returned with the first occasion CHAP. XXXIV Of the Fair of Lyons in France Rule I. AT Lyons in France are year four Fairs the Royal Fair which begins the Monday after Epiphany or Three Kings day the Easter Fair which begins on St Nisiers day in April the August Fair which begins on St Dominicks day in August the St Huverts Fair which begins on that day in November II. Every Fair hath its Payments the Fair Royal hath its time of Payments from the first to the last of March the Easter Payments begin the first and end the last of July the August Payments begin the first and end the last of September and the St Huverts Payments begin the first and end the last of December III. At Amsterdam Bills are made payable at the ensuing or present Payment but it s not usual before one Payment hath begun to negotiate on a following but on a second or third Payment IV. Bills for Parcels negotiated on Lyons must instantly be given and that before the Remitter pay the Value but Bills made payable at the Fair are not payable till the payment of that Fair whereof they are made payable nor need they be accepted till the beginning of the times of Payment and may be deferred till the sixth day after the beginning of the respective payments but no longer within which time Protest must be made All Acceptances must be made in writing V. None can by a full Power negotiate or accept any Bills unless he first show his full Power to the Judges of the Fair and cause it to be registred which is to be observed in all Fairs as well as at Lyons and without this no full Power c. is of any effect against the Principal but the Creditors must look to him who pretended the full Power VI. Protests for Non-acceptance need not be sent away before the ending of the respective terms of Payments but advice must be given thereof before the time of payment begins the day after the aforesaid six dayes of acceptance are expired unless it be a Holy-day and then the day after and continues to the end of the Moneth none may pay a Bill before the sixth day but on his own hazard and after the last day of Payment the Possessor may refuse if he will to accept of payment and may return the Bills and Protests and demand Re-change and Charges of the Drawer or Endorser but Protests for Non-payment may be made any time within three dayes after the term of payment is ended if then not made the Drawer and Endorsers are not lyable to answer VII Possessors of protested Bills must seek their Redress on the Drawers and Endorsers within a certain and fixed time viz. all Bills drawn or made within the Kingdom of France within two Moneths time drawn on Italy Sweitzerland England Holland Germany and Flanders within three Moneths time Spanish Portugal Polonia Sweeden Denmark Bills within six Months time or else he loses his Redress on the Drawer and Endorsers VIII All Bills payable in any payment are accounted fully paid and satisfied in respect of the Inhabitants within one year and of Strangers within three years after the same should have been paid and the Possessor of the Bill hath no redress on the Acceptant after such a time unless he make it appear that he endeavoured to procure payment and could not CHAP. XXXV Of Debt-Exchanges Rule I. IN a pure and real Exchange the Drawer receives Monyes of the Remitter and gives Bills of Exchange wherein he promiseth himself or by his order to pay the value he received according to the conditions in ready Moneys but in mixed or Debt Exchanges the Drawer receives no Monyes but is Debtor and gives Bills to his Creditor who is reckoned and accounted of as the Remitter for payment of his Debt II. Such Bills are made either for the recovery of old Debts or else to assure the Creditor of precise payment for those Goods the Debtor hath bought at time III. Whether the Debtor make the Bills payable by himself or by any other or whether the Debtor and Creditor agree about the course of Exchange or not the Debt doth change its nature and the Debtor that gives a Bill of Exchange upon himself or another doth make himself lyable to the Law of Exchanges and may upon failure of payment be prosecuted with ready execution attachment upon Goods and arrest upon his Person IV. A wise Creditor will at the Receipt of such a Bill from his Debtor make an absolute agreement and contract concerning the Course and presently upon the Receipt thereof credit his account of Goods and debit his account currant for the Value V. It s not necessary in a Bill to express whether the Value was paid in Monyes or was Rescontered or in Goods c. if the Debtor do but effectually receive the Value or it tend to the discharging or lessening his Debt VI. He that gives a Bill for the payment of an old Debt or for Goods bought c. he must demand of his Creditor an
Petty Exchange the latter Real VI. The Exchanging of one sort or species for another is also two-fold either with or without Profit VII When it s done without Profit it cannot be called a Trade but is done meerly out of Friendship and as a Courtesie and then there is an equal and just Valuation of both the sorts of Coyn according to their Allay or their Price currant or Intrinsick and Extrinsick Value VIII But if Profit by the Exchange be designed by either Party then one Party allows the other a certain Profit upon the certain Species he desireth and that Profit is called by the Italians Aggio by the Dutch Opgelt which we may call Advance or Vse-Monyes IX But then this last kind of Exchange which is done for Advance or Aggio is no free and lawful Trade save to those only that are permitted by Authority to use it who are also obliged to observe certain Rules and Methods in the use thereof such are Brogers Bankers c. X. And to prevent all Confusion and the too great Advance of any particular speices of Monyes the Cities of Amsterdam Hamburge c. have erected a Bank for the Regulation thereof according to the true Intrinsick Value of every Species XI Exchange that is done by Bills of Exchange consists in a Contract and Agreement betwixt two Parties whereby the one Party gives his Bill for the Payment of a certain precise Sum of Monyes at a certain and limitted time in a certain and limitted place for the value of the same Sum already received or presently to be paid by the other Party this is called by Marius Real Exchange XII Exchange may again be subdivided viz. into the Merchants and the Vsurers Exchange XIII Merchants Exchange consists in a Trading in or with Monyes from one Place City or Nation to another upon an uncertain Profit and this sort of Trade is by way of Excellency termed Simple Exchange XIV Vsurers Exchange consists in a giving Monyes upon Interest with condition to receive the same Sum of Monyes with a certain Profit at a certain time and in the same place and this is called by Marius Dry Exchange XV. Merchants Exchange is either actual and that which is really performed and accomplished or only pro Formâ XVI The Real Merchants Exchange consists in a real and effectual Contract and Negotiation betwixt the Drawer the Remitter concerning the Course of Exchange and the Time and Place of Payment XVII But that Exchange that is only pro Formâ consists only in a Consent that the Name of a certain Person be used as the Remitter that the Bill may want nothing of its Formality without any real Contract or Negotiation XVIII Again this real Exchange is twofold either Certain or Conditional XIX Real Certain Exchange is when the Sum exprest in the Bill must really and certainly be paid XX. But Conditional Exchange is when the Payment of the Sum named in the Bill must first be made upon the arrival of some Ship or of some certain Goods or upon some other Conditions XXI To the Compleating of an Exchange-Negotiation four Persons are considered and required two at the place where the Course Place Time of Payment and the Sum are agreed on to wit the Drawer and the Remitter and at the Place of Payment are also two to wit the Person on whom the Bill is drawn who must Pay and the Person to whom the Bill is remitted who must Receive XXII Exchange is again subdivided into Negotiated and discounted Exchange or Rescontred Exchange XXIII Negotiated is when the Drawer and the Remitter are two distinct Persons betwixt whom there hath been an actual Contract and Agreement concerning the course c. XXIV Discounted Exchange is when the Drawer and the Remitter is one and the same Person that at the same time draws and remits XXV Negotiated Exchange is again two-fold either Pure or Mixt. XXVI A Pure Negotiated Exchange is when really Money is given for Moneys to be received according to the contract betwixt the Drawer and the Remitter whereby the Drawer obligeth himself to pay the value he hath received of the Remitter according to the course in another place at a certain precise time XXVII Mixt Exchange consists in a contract betwixt Debtor and Creditor whereby the Debtor obligeth himself to the true payment of the Monyes according to the custom of Exchange XXVIII Again all Exchanges are either for a Man 's own or for some Principal 's account or in the Name of another XXIX When it is for Proper account it concerns the Person that is either Drawer or Remitter XXX When it s for the Principals account the Factor treats and concludes in his own Name but the Sum c. is for the Principals account XXXI And it is in the Name of another when it s done only by the full Power and Letter of Attorney of another XXXII And lastly Exchange is either directly to a certain place or indirectly and is sent to some other place first to be negotiated CHAP. II. Of the Duty of Mackelers or Exchange-Brogers Rule I. EXCHANGE is concluded either by the Mackelers or Brogers alone betwixt themselves or by bringing the Parties face to face II. Brogers c. are Persons Sworn and Authorized by the Magistrate whose Work and Trade it is to enquire of Persons that have any Monyes to remit or to draw and to argree such Persons concerning the Conditions acting Impartially between them both III. It is their Duty to be Diligent Faithful and Private and not to Cheat or Over-reach either the Drawer or the Remitter in any wise IV. He must be content with that Reward for his Pains and Labour that the Magistrate hath allowed him which is called by the the Hollanders COURTAGIE He must not exact more of one than another nor serve any man for nothing V. Those Covetous Exchangers that will save the Courtagie by concluding their own Exchanges face to face without the help of the Brogers on that use to deduct from their allowance or that will use Ignoramus's because they will serve for less than the Allowance or may be for nothing at all do sometimes in the Course of Exchange pay the Courtagie double and tribble VI. A Broger must be very diligent and prudent and must first of all know of the Drawer and Remitter to what certain place they will Exchange and if it be to such a place where there is alwayes a certain Vsance observed in the Payment of Bills then he hath nothing to do but to treat of the Course or Price of Exchange But in case they would Exchange to Places where no certain Vsance is kept but the Bills must be made at shorter or longer date or sight c. then he must be express and certain as to the precise Time of Payment and other necessary Conditions VII When the Mackeler or Broger hath concluded with any then must he tell the Drawer to whom he will have his Bills
then the Possessor is obliged to carry or send the Bill to that place and there formally by a Notary Publick demand acceptance and in case of refusal to protest XI If the Acceptant be an Out-dweller i. e. dwells in another place than where the Bill must be paid then when acceptance is demanded usually the Possessor desires him to under-write to whom he must at the time address himself for Payment But the Acceptant is not obliged to do this but on the contrary the Possessor is obliged to give the Acceptant timely notice to whom the Bill must be paid if it be a Bill that is payable to order XII When a Bill is made payable after sight or at usance and usance be reckoned after sight by an Out-dweller then the Acceptant may date his Acceptance on the day it was demanded of him if Acceptance be demanded directly from the place where the Bill was drawn but if the Bill be first sent to the place where the payment must be made then the Acceptance ought to be dated the day of the arrival of the Bill at that place and not on the day of its being presented to the Acceptant in the place where he lives if the Possessor will stand strictly and precisely for a day with the Acceptant otherwise it s no loss or prejudice to the Possessor when the Acceptance be dated if within the just time XIII An Out-dweller must take special care that the Bill be discharged at the day in its due place and must not wait till the Possessor advise him thereof XIV When a Bill is payable by an Out-dweller to order and not to a certain Person and the Acceptant hath not ordered to whom the last assigned shall address himself at the day of payment then the Possessor whoever he be is obliged to give the Acceptant timely notice to whom the Bill must be paid that the Acceptant may within the Respit dayes return an answer and make all due and necessary preparation to discharge the same XV. If the Out-dweller at the time appointed remit to the Possessor of his accepted Bill in other Bills due at the same time with the Possessor's Bills the Possessor is not obliged to demand Acceptance and Payment of those Bills of his Acceptant the Out-dweller unless he hath Provision allowed him because he hath double Trouble in procuring his Moneys and is obliged to keep a Correspondence and many other inconveniences may follow but when the Acceptant doth simply address the Possessor to some certain Person to demand payment of him for the Bill to him he is obliged to go to receive his payment without any Provision XVI When an Out-dweller hath a Bill remitted to him payable by an In-dweller and the Out-dweller desires his Acceptant at the day to send him his Moneys in Specie or to remit him the value in other Bills the In-dweller is not obliged to do this without allowance of Provision c. XVII The Possessor of a Bill payable by an Out-dweller must at the last day of Respit if he get no payment order a Notarius Publicus to enter a Protest for Non-payment which Protest though not made in presence of the Person nor at the House of the Acceptant is valid and effectual to all intents and purposes because the Possessor of the Bill is not obliged to protest against an Out-dweller at his House or Dwelling nor to seek him out of the City or Town where the payment is to be made The Out-dwellers of Amsterdam have made use of this Policy to make the foregoing Rule and Protest ineffectual on the day of Payment pretending Ignorance of the Person to whom the payment is to be made they at the place where the payment is to be made address themselves to a Notary Publick on the last respit day and there declare to him That such and such a Bill payable to order by them accepted is now become due whereof none have demanded payment they therefore protest for their readiness and willingness to discharge the said Bill and accordingly they cause a formal Protest to be drawn up and send the same to the Drawer to make use of the same against any other Protest for Non-payment but this slight and cunning might be prevented if one general Office of Protests were erected where all Protests should be Registered and so every one might see to whom they are to apply themselves XVIII Marius adds That in case an Out-dweller refuse Acceptance when the Bill is sent to him Protest may either be made at the House of the Out-dweller by the Person who was ordered to demand Acceptance or else at the place of Payment the Friends Letter that demanded Acceptance being produced to the Notary is sufficient to ground the Protest upon and so also in case of Non-payment XIX Though the Possessor be not obliged to seek for payment of an Out-dweller in any place than where the Bill is payable and the Drawer or Acceptant hath addrest it yet he may in case of Non-payment Executive proceede against the Acceptant in any place where he either finds his Goods or his Person Sigism Scaccia XX. Scaccia The Debtor by Exchange is obliged to bring his payment to the place of payment though it be both chargeable and dangerous and the Risco and Expences are his own and if the Debtor request the Creditor to take his payment in any other place and the Creditor consent the Risco and the Charges must be paid and allowed by the Debtor as they can agree but if the Creditor receive his payment simply then he takes the Hazard and Charges upon himself XXI So also the Creditor by Exchange is obliged to come to receive his Moneys at the place appointed though it be both expensive and hazardous to carry the Moneys Home or to any other place where he would have it but yet the Creditor can and may seek his Debtor in any place where he will and there receive his payment but then he cannot compel the Drawer to bear the Charges thereof nor the Risco Scaccia CHAP. XXV Of Exchanges in Commission in General and of Bills drawn on one Place over another Place Rule I. EXchange to a place over a place or thorow a place is when Bills are not made payable or remitted to the place or City directly where the Moneys are or where the Remitter would have his Moneys but on some other place from whence the Value is to be re-drawn or re-remitted to the place where the Money is to be paid or where the Remitter would have his Moneys Exempli gratia A Drawer hath Moneys lying at London and would gladly have it at Dantzick the Drawer at Dantzick cannot directly draw his Moneys in from London but first he draws on Hambrough or Amsterdam and then orders his Friend at Hambrough or Amsterdam to draw upon London II. The Reason of this kind of Exchange is either First Because directly there is no
Acceptance procured draw it in or order his Correspondent to receive it and pro Formâ makes the Value received he must observe well whose Name he makes use of and to whom he sends such a Bill that in case the said Remitter pro Formâ should happen to draw in the said Bill and the same should be protested for Non-payment and the Endorser should be Insolvent he the said Drawer should be obliged to pay the Rechange to the Possessor of his Bill without having received the Value or if the same should be paid he do not change a bad Debtor for a worse and quite lose his Monyes XI When a Drawer dare not draw in the Bill the Value wherefore he hath made received pro Formâ fearing the Acceptant should not accept or not pay if he did accept and therefore makes his Bill payable directly to some living at the same place with his Debtor and does advise the said Correspondent that for Reasons known to himself the Value is made received pro Formâ only in such a case the Possessor must be prudent in case the Drawer is not very sufficient and honest for he ought not pay the Monyes he hath received on that Bill unless the Person whose Name is used in the Bill do order him to follow the Directions of the Drawer in the disposal of it or unless the Drawer give him other sufficient satisfaction XII Among Exchanges pro formâ must be reckoned those Bills that are drawn on Debtor but are sent to the Drawers Creditor to be paid to him or his Order the value of the same pro formâ concerning which Bills he makes no agreement with the Creditor concerning the Course only requesting him to procure Payment and place it when received to his account XIII A Debtor that gives such a Bill to his Creditor may demand a Receipt from the Creditor wherein he acknowledges the Receipt of the Bill and that his Name as Remitter is only used pro Formâ and that he doth oblige himself to demand the same and when paid either to remit it or make it good to the Drawer or Debtor according to the course of Exchange but in case he receive not the Sum the Drawer or Debtor shall not put to any further Charge for Protests Postidge c. XIV A Creditor that accepts of such a Bill from his Debtor would do well and wisely to let the Drawer or Debtor give him a Note under his hand whereby he desires the said Creditor to send his Bill to his Correspondent or to demand acceptance and payment that in case the Monyes should be received by the Correspondent but not remitted to the Creditor or being remitted the Remises are not paid or the Creditor not protesting in due manner and form c. the Debtor may have no occasion to complain of his Creditor and force him to stand to the loss XV. When in such a case the Debtor agrees with his Creditor concering the course whether before or after the Acceptance thereof and does credit his account currant for the sum or else when another whose Name is used pro Formâ agrees for the course with the Drawer and pays him the Value then this Exchange pro Formâ loses its nature and becomes real and actual and in case of protest the Drawer is obliged to make good the Re-change and Charges XVI When such a Bill at the request of the Debtor is by the Creditor drawn in and the Value is made him good in the account currant in such a case the loss by Re-change and the Charges come to the account of the Drawer or Debtor but if the Creditor draw in the Bill without the order of the Drawer or Debtor then he himself must bear the loss if any happen CHAP. XXXIX Of Dry-Exchanges Rule I. MErchants Exchanges do properly consist in a giving Monyes in one place to receive the Value at a certain course agreed on in another Dry Exchanges consist in a giving of Monyes also but the repayment is to be made after a certain time in the same place where the Monyes was given and such a sum certain over and above as the giver of Monyes can get and agree for which is Interest at least and sometimes more So that the distance of places is a Substantial or Essential part of Exchanges and as the Marrow and Soul thereof which being awanting in these sorts of Exchanges they are therefore called Cambia Sicca Dry Exchanges II. In this kind of Exchanges sometimes the Sum to be repaid for the Sum received is fixed determined and certain sometimes uncertain and accidental III. When the Sum to be re-paid is fixed and certain then the Giver hath a certain and fixed Profit and Advance which is also contrary to the nature of Real Exchanges and this is properly called the Vsurers Ex-change by which they may more securely oppress their Debtors IV. For usually they have one of these three Designs in their Eye that dispose of their Monyes after this manner 1. That they may be sure of their Monyes at the appointed time 2. To get a certain Interest and to have better security for their Monyes than the usual Bills Bonds and Obligations are Or 3. To drive an unlawful Trade of unlawful Vsury V. He that on this manner disposeth of his Monyes can at any time when he pleaseth make himself Master thereof again if the Bill be made Payable to himself or order for he can then at any time negotiate and draw in the said Bill with Reputation and Credit and let it be drawn in from any other place which he cannot do with any other Obligations Bills Bonds or Recognisances c. VI. And such a one doth secure his Monyes better by such a Bill of Exchange than by any Obligation whatever because if the Bill be not paid at the day punctually he hath present Execution ready at hand by Attachment and Arrest and he hath preferrence before all other Demanders as if he had a Judgment confest VII An Usurer hath also this advantage by such Bills of Exchange that the Sum to be paid is only mentioned in the Bill not the Sum that was received so that it cannot be known what Interest such a one receives VIII With these kind of Exchanges the Exchanges upon Frankford's Fair and Return have a great Affinity when the Drawer and Remitter do negotiate together upon the Return c. IX The Value agreed upon to be re-paid is uncertain and accidental when in the bargaining they agree concerning the Course to such and such a Place or Fair but the Drawer is obliged to pay his Monyes in the place where he received it and in such a Course as shall be at the time of payment to such a certain place As for Example E. gives F. 1000 Ggd. on the Frankford's Fair with condition that the Sum shall not be paid at Frankford but at the return of the Fair at Amsterdam and that in such a course
Acceptant Drawer and Endorsers should all fail and be Insolvent then he may come upon all their Goods for satisfaction XLVII The Possessor may demand the full Sum with all the Charges out of the Goods and Effects of that failed Acceptant Drawer or Endorser where he first gives himself on as Creditor and what he receives there he may place to account in part of his Demands and if not satisfied there he cannot demand the whole again of another but only the remainder and so from one to another till he be satisfied fully XLVIII If the Possessor of a Bill whose Acceptant Drawer and Endorsers are all failed receives something in part of satisfaction of his demands if the failed or the Curators do thereupon demand an Acquittance with a Cession of the Action to him or them then the Possessor must not acquit nor transfer more of his Action to him or them than for the value he hath received XLIX When the Possessor hath received of one of the failed in part satisfaction of his Demands and comes to another of the failed to demand the rest then he cannot make a Cession of his Action against him from whom he had received in part satisfaction at first because he was there admitted into the Concourse for his whole demand and accordingly received his proportion So that NB. though a Possessor enter into a concourse with other Creditors and take in part of his Debt of one of the failed as much as he can get and thereupon doth absolutely discharge him yet for the remainder he may come upon the other Endorsers or Drawers till his Bill be fully satisfied only he cannot transfer or transport his Action against him whom he hath discharged L. When a Possessor of a Bill whose Drawer Acceptant and Endorsers are all failed does first receive in part of his demands of one of the failed for whose account the Bill was drawn but hath either drawn or endorsed or accepted the Bill for anothers account without having any effects in his hands then the Possessor must enter with him who paid him in part into a concourse between themselves and both demand of the others or any one of them that failed the subla summe with the Charges LI. In case of the failing of Drawers Acceptors or Endorsers of Bill many difficult Questions could arise whereof some of them are as follow 1. Suppose either the Drawer or Acceptant should fail and the other remains sufficient Quaeritur Whether the Possessor to pleasure him that is yet sufficient may being not requested thereto by virtue of of the Bill enter upon a concourse or whether he must look to him only that is sufficient and leave the other to take care for himself 2. Suppose the draught is for account of a third Person and the Accepant fails before Provision be made to discharge the accepted Bill by him for whose account it was drawn and accepted suppose also the Bill being protested for Non-payment the Drawer should prosecute the Acceptant or any other Possossor should do it and at last they come to terms of agreement and the Acceptant doth then accordingly satisfie the Possessor whoever he be Quaeritur What right of demand these either of them have one upon another or either or both of them upon him for whose account the Bill was drawn 3. Suppose the Possessor of a Bill hath negotiated to protest within the days of Respit and the Acceptant should fail without having Effects in Hands for whose account he accepted Quaeritur Whether the Possessor may agree with him for whose account the Bill was drawn and so mortifie the Draught or whether he for whose account it was must fully satisfie the Acceptant and the Possessor must be content to engage in a concourse with the Acceptants Creditors 4. Suppose a Merchant hath no other Debts at all but one only Bill of Exchange by him drawn for his own account whose Acceptant failing he also is forced to absent Quraeitur Whether the Possessor may seize upon all the Effects of the Drawer upon account in part and for the remainder may be admitted as a Creditor into a concourse of the Acceptants Creditors 5. Supposed in case of the failure of Acceptant Drawer and Endorsers the Possessor should first make his demands of the full Sum of him who is the true Debtor and ought to pay and the remainder should be demanded part being there satisfied of the Endorsers or any other concerned in the Bill that have only drawn endorsed or accepted for anothers account Quaeritur Whether in such a case this last demand being also satisfied they that pay to the Possessor the remainder may come upon the Person who ought to pay for so much as they have paid to him 6. Suppose that any Merchant should fail that hath three Creditors only one demands 600 l. Ster for Goods sold another as much for a Bill of Exchange drawn by him for his account whose Acceptant failed and a third as much upon an Obligation Bond or Bill for so much Monyes deposited having no other Security but his bare Bond. But though there be so much Debt yet the failed Debtor hath no more Effects then 600 l. Ster in all Quaeritur 1. Whether this Sum of 600 l. must equally be divided among these three Creditors or not 7. Suppose again this being done the Possessor of the Bill should come upon the Acceptant for the remaining 400 l. Sterling and should there be forced to enter with other Creditors upon a Concourse Quaeritur 2. Whether then the said Acceptant may not pretend that he paying so much on the foresaid failed's account and so becoming his Creditor that another division of the foresaid 600 l. ought to be made and he to have part thereof the same may be enquired after in case the Possessor of the Bond c. had any Security and he forced then to pay the remainder whether he ought not to admit them as Creditors to the 600 l. Sterling 8. Suppose that Drawer Acceptant and Endorser are all fail'd and have given their Goods and Effects into the Magistrates or any Curators Hands and the Possessor should in one place give himself on for the full Sum and receives there something in part and so also in another place receives something more and after some time be expired more of their Debts being come in the Magistrates or Curators should make a second Division Quaeritur Whether the Possessor of the Bill at this second Division must come in for a proportion according to his respective Sums he formerly received or for what Sum he must be admitted 9. Suppose that Bills of Exchange are running betwixt two or more that are failed for one anothers account reciprocally and neither of them have open accounts for one another neither accounts currant nor upon time and yet both have Goods unsold in their hands Quaeritur How then the Composition must be made and whether what the one hath
him for all the fault is the Drawers And if the Possessor refuse to protest such Bills the fault is his and he may make himself therby lyable to make satisfaction to the Remitter if any Damage should ensue Case 5. Whether the Place must necessarily be added in the Date of a Bill of Exchange Answ In the Affirmative de Consuetudine non de jure It s not enough to know that such a Bill was done in the World or in England Scotland France or Ireland but at least the Name of the City where such a Bill was made must be exprest and as he is unwise that will accept a Bill of Exchange any way deficient in these Circumstances of Time or Place so also is that Possessor unwise that because the Bill is deficient will not protest upon refusal of Acceptance To this let be added That if the Acceptant doth accept a Bill and doth not then observe it to be desicient in any of these Circumstances and afterwards will make such Exceptions to avoid the payment thereof he cannot thereby be excused but must pay Case 6. Suppose that this day the 3 13 of November Anno 1680. at Konigsbrough in Pressia I writ Letters to Hambrough to Robert my Correspondent there advising him that I have drawn on him of the same date such and such Bills c. Suppose also that instead of dating them the 3 13 of Novembris aforesaid they be dated the 3 13 Octobris past or the 3 13 Decembris to come These Letters and Bills they arrive at Hambrough by the Post the 11 21 Novembris on which day the Letter of Advice is delivered and the Bills for Acceptance presented The Acceptant he presently observes the Error and begins to scruple Acceptance if he doth accept he knows not how to place them to account in his Books because the Dates which should be orderly and one Day and Moneth follow upon another in his Books and it may be he suspects there is some piece of Policy or Knavery rather in the case and either the anti-dated Bills should not be paid at all suppose they were at sight till the 13 3 Decembris or the Post-dated Bills suppose the term of Payment be expired should not be accepted at all in these Perplexities of Thoughts has states and fears in the whole the Design is to trapan him especially if he hath engaged himself under a Penalty to accept all the Bills of such and such a Person for some limitted Time and Sums What shall and must Robert my Correspondent do in such a case Answ Robert not only may but must accept and pay those Bills though no Penalty were annixed For First This pretext of an Error in the date will not excuse me the Drawer from paying the Rechange and Charges if protested much less my Correspondent who must observe my order and represents my Person and that this pretence will not excuse me is self-evident because in respect of me Time and Place are not of the Essence of the Bill by an Error or the Omission whereof the Bill it self should be so vitiated as to be null and void Secondly Suppose an Error in or Omission of these Circumstances of Time and Place were of the Essence of the Bill of Exchange yet though the Bill be deficient and vitiated yet the Contract contained in the Bill is valid and firm And Thirdly In such a case where an Error is so evident and palpable respect should be had to the Letters of advice and if they were also wrong dated yet being its impossible that Letters dated at Konigsbrough the 13th Decembris should arrive at Hambrough an hundred Dutch Miles off and more three Weeks before the time of the date Thus palpable Error must give way to Truth especially seeing the Error is not in the solemnity of the Contract but in the formality of the Bill and these Circumstances are only added as Proofs of the Contract not as Parties and of the Essence thereof Case 7. Whether an Error about or an Omission of the Name of the Place be Fssentially necessary to be exprest in a Bill of Exchange Answ To avoid Repititions I refer my self to what hath been said concerning an Error in or Omission of the time of the date of a Bill Case 8. If the Sum exprest in Figures and the Sum writ at large in Letters disagree Answ Refer'd to what was before hinted Chapter 7. Rule 26. Glassema Secundum At Vsance VVHat Usance is and what other times of payment are usually exprest in Bills and all other Questions and Cases concerning them we refer to what hath already been said in the 14th Chapter fore-going Glassema tertium Here must be promised Pay 1. THat Pay is here modi imperitative temporis prosentis accordingly hath various Effects 1st That Bills of Exchange are positive and peremptory the Order is absolute and cannot be revoked 2dly That the Payment at the time appointed must necessarily be made and if accepted cannot be avoided Wherefore 3dly It s not according to the Merchant Stile to say in a Bill of Exchange Please to Pay the Stile of Exchanges will not allow of such Complements not from a Servant to a Master 4thly This word Pay commands Acceptance first in order to Payment as well as Payment it self Concerning Acceptance which preceeds Payment alwayes we have spoken something before Chap. 10 11 and 12. and probably shall have occasion to hint something else afterwards wherefore we proceed to speak to several Cases concerning the Payment of Bills Case 1. What is it to pay a Bill of Exchange Answer To satisfie the Bill and procure a discharge upon it that the Acceptant and the Drawer may be discharged from the Remitter and Possessor so that to Pay is rather to be referred to the substance of the Obligation than to the payment of Monyes and if the Bill be satisfied it s no matter at all whether with Monyes or Goods or by Resconter c. though ordinarily all Bills are paid in Monyes and this is certain that if the Bill be for Monyes it must be paid in Monyes if the Possessor will have it so and a Possessor may as well protest for Non-payment if Goods be offered instead of Monyes or any other Species of Monyes than that the Bill requires as to pay per Cash when the Bill is payable in Bank as if no Payment at all were offered Case 2. How many sorts of Payments are there And to whom is the Debtor said to have paid well and to whom not Answer There are two sorts of Payment Proper and Improper Proper is when the Bills are paid in the precise Species and according to the tenor of the Bill either in Gold or Silver in Bank or per Cash in currant lawful Monyes and such Species as the Bill requires and such Payment as this doth absolutely discharge the Debtor because the Obligation is fully satisfied and the Creditor need not be much inquisitive
not to be abandoned only by the way let honest Merchants here be cautioned That from the lawful use thereof they be not tempted insensibly to slide into the unlawful abuse thereof lest of honest Merchants they become griping Usurers and this caution is so much the more necessary in regard of the intricacy of Exchanges and the difficulty of finding out the Knavery of an Exchange-contract for as the Spanish Proverb is Arca aperta justum ad peccandum invitat which is in plain English Opportunicy makes a Thief Nor with the variety of divisions and subdivisions which divers Authors make according to their own Conceptions and the Idea thereof that they have framed to themselves as into apparently Lawful and apparently Unlawful and some Ambiguous some Pure some Impure some Mixt some Real some Feigned some Wet some Dry all which Divisions and Sub-divisions tend more to the obscuring and confounding the true nature of Exchanges than to the unfolding of them for from all its Qualities and Accidents it is capable of Divisions Subdivisions and Distinctions wherefore I shall omit these nicities and curiosities and only add this That as of all Commerce so also of this part thereof Equity commutative Iustice must be the Basis Aequalitas dati accepti must be its Rule and Honesty must be the Artery under this vein of Commerce without which Traffick cannot subsist or else whatever Reasons be urged for its lawfulness and whatever Distinctions be used it is unlawful if not curia exteriori at least foro fori But alas it is to be feared that these things are little observed by those who make it their sole Trade to practise Exchanges Not but that it is lawful for such as give in Exchange to consider the lawful Interest of their Monyes their great Labour and Expences the Risco that they run the plenty or scarcity of Monyes or Bills the Intrinsick Extrinsick value of the species of Monyes they must pay and again receive which things if not considered there is no equality but that which is condemned in Exchanges as was said before is the Extortion and Oppression and the Abuse of Exchanges palliating their unlawful Usury therewith So that whatever may be objected against the lawfulness hereof may be retorted with this that they are not vitia artis but artificis and let those Bankers that thus abuse a lawful calling consider that usually as hath by some been observed these great unlawful Gains have been attended with greater Losses and it cannot well be otherwise for first Mala parta male cito dilabuntur secondly as the Dutch Proverb is As long as the Covetous man lives the Deceiver need not dye for hunger for the hopes of great Gains makes them run great Hazards and thirdly their greatest Trade being with honest Merchants whom they credit these often by divine Providence do suffer great losses who often run great Risco's at Sea and so are made insolvent and if some griping Usurers and Abuses of the lawful calling and art of Exchanges are not concerned it will be very strange That which gives most men an occasion to dislike and disprove of this Mystery of the Bankers is this 1st That they are observed to be men of very broad Consciences they will pretend Honesty as much at any but they exercise it as little and especially its hard to perswade them that they are in Conscience obliged to remit parâ— of their Debt to him that cannot possibly pay who not by his own but by others Knavery not by his own Folly but by the Providence of God bath suffered the loss of all that he hath and then 2dly They that are strangers to this Art and Mystery for so it may well be called cannot conceive hom Moneys which of its self is barren should so fructifie as if there were some Alchymistrical cunning used by them or as if by Superfactation they could multiply Moneys they think it strange that such men who in appearance are idle do nothing but sit and write dealing in no Commodities neither by buying nor selling should so suddainly acquire so vast Estates and gain more than the most laborious and industrous Merchants Nor 3dly can they understand how Monyes that is the measure and price of all other things necessary for life and which for that end only was invented should be the measure and price of it self and so be mensurans mensuratum regulans regulatum and they judge it according to their Logical and Phylosophical Capacities that an actio passio in the same subject is impossible But these should again consider to write is not to sit still or to be idle and to study and contrive and correspond is the greatest labour as also that it is only idle Monyes lockt up in a Chest and unimployed that is unfruitful and barren and that there is a mixture of Contracts in Exchanges and a buying and selling also and that the profit thereof doth not arise only from the consideration of time though according to the longer or shorter time the course is higher or lower proportionably but conjunctly from a consideration of the Labour Expences and Risco of the Exchanges nor do they alwayes gain by Exchanges nor can they that observe the lawful Course of Exchanges know certainly that they shall gain for posito that the men be able and sufficient that they deal with yet such is the variableness of the Course that till they have the Moneys in Cash again which they gave out on Exchange they cannot know whether it be to their loss or profit But that which renders this Art of Exchanging most suspected is the Practice of Re-change which is doubless unlawful and I shall not plead for it But lest I be mis-understood I will declare what I mean by Re-change and what others take it for and the Re-change that is condemned is this When an honest Merchant or other standing in need of present Monyes comes to an Exchanger and offers him his Bill for so much Monyes the Exchanger prying like a Vulter upon his necessity gives him so much Monyes upon good security at an high Course and knowing that the Bills will not be paid but protested he conditions that the Interest Charges and the course of Exchange back again shall be added to the Sum and converted to the Capital or Principal this augmented Sum is redrawn upon the poor necessitous Debtor and if the Debtor cannot pay then the Exchanger will probably continue it so long and so far as the Pledge or Security he hath is worth always augmenting the Sum as before all which at last he forceth the poor Merchant to pay him though he utterly ruin him and his whole Family whence by the way observe That this Re-change is alwayes with the same Debtor by converting the Interest into the Principal and that the Creditor knows that the Debtors Bills will not be paid and that therefore many Fictions are admitted of and that the
Creditor doth by violence extort from the poor Debtor whatever his insatiable avarice shall prompt him to And thus they cloak their Vsurous Contracts and ruin the poor Debtor and this is that Rechange that is unlawful But I shall not enlarge upon these things lest I swell the Book to too great a Vollumn I shall only here observe That Exchanges were introduced by the Law of Nations as all Commerce was and was invented for the ease in Traffick and is now so necessary an Appendix thereto that without it Trade can scarcely subsist it s the soul and life thereof and is of the very Essence of all Commerce and Navigation The variety of Coyns and their Extrinsick and Intrinsick Values gave the occasion thereof and the design was to prevent the hazard and charges of transporting Monyes from place to place to traffique with But now by the Policy of Merchants it s turned to a most profitable Trade and its evident enough that they are now neither Fools nor Prodigals that will for a small piece of Paper or two give away so much ready Monyes for those Bills of Exchange they receive do usually bring all back again with Interest yea now according to the number of these Bills men may safely value their Estates To which purpose Sigsin Scaccia tells a pretty story An Italian Merchant being in company with some Scholars they were discoursing of a certain learned Person that was shortly expected to come to a certain place whom highly commending for his learning they said he was Omni literârum genere imbutus of whom presently the Merchant demands Quas haberet Literas To whom they answered That he was so and so qualified had Greek and Latine on his Fingers ends c. Whereat the Merchant lift up his hands and said Is that all What else should he have says another Ho says the Merchant if he hath no Letters of Credit Literas Combij Bills of Exchange all the rest is of no value But not to detain the Reader any longer here and leave the Book to his purusal and approbation and I question not but those that shall have occasion to buy and puruse it will indeed find that its both useful and necessary for all Merchants especially for those that are Young John Scarlett ADVERTISENENT NB What I have translated for the most part Remitter is by some called the Deliverer in that he delivers Moneys And the Possessor of the Bill is he to whom the Bill is payable The Acceptant is he to whom it s directed The Drawer is sometimes called the Taker INDEX Chap. I. THe definition and multiplicity of Exchanges page 1. Chap. II. Of the duty of Mackelers or Exchange-Brogers p. 7. Chap. III. Of the course of Exchange p. 13. Chap. IV. Of the reduction of Exchanges p. 17. Chap. V. What a Bill of Exchange is and what the Drawer before the delivery thereof and the Remitter before the receipt thereof must narrowly observe p. 22. Chap. VI. Of placing Bills of Exchange to account p. 30 Chap. VII Of Letters of Advice p. 40. Chap. VIII Of the payment of the value by the Remitter to the Drawer p. 48 Chap. IX Of negotiating drawing in or endorsing of Bills made payable to order p. 53. Chap. X. Of demanding acceptance p. 59. Chap. XI Of protesting for Non-acceptance p. 71. Chap. XII Of acceptance of Bills of Exchange supra protest p. 78. Chap. XIII What the Possessor of a Bill of Exchange protested for Non-acceptance and is not accepted supra protest together with the Drawer and Endorser are obliged to p. 88. Chap. XIV Of the time of payment of Exchanges p. 96. Chap. XV. Of demanding of payment p. 105. Chap. XVI Of the payment of Bills by the Acceptant p. 109. Chap. XVII Of protesting of Bills for Non-payment p. 121. Chap. XVIII Of the payment of Bills supra protest for Non-payment p. 129. Chap. XIX What the Possessor of a Bill protested for Non-payment and not discharged supra Protest hath further to do p. 138. Chap. XX. To what the Drawer and Endorsers of Bills returned with protest for Non-payment are further obliged to p. 142. Chap. XXI What an Acceptant of a Bill that he hath suffered to be protested for Non-payment and is returned with protest is obliged to p. 148. Chap. XXII Of subscribing a second or third Bill p. 152. Chap. XXIII Of Exchanging for account and in the name of a third Person p. 155. Chap. XXIV Of Bills of Exchange drawn on one place but payable in another p. 160. Chap. XXV Of Exchanges in Commission in general and of Bills drawn on one place over another place p. 169. Chap. XXVI Of Drawing in Commission p. 180. Chap. XXVII Of Remitting in Commission and standing del credere i.e. being Surety therefore p. 188. Chap. XXVIII Of being drawn upon in commission p. 199. Chap. XXIX Of being remitted to in Commission p. 205. Chap. XXX Of Rechange and continuance of Exchange and Rechange p. 210. Chap. XXXI Of Exchanges to and from Fairs in general p. 218. Chap. XXXII Of Exchanges from Amsterdam to Frankford on the Main vice versa p. 225. Chap. XXXIII Of the Leipzig Fairs p. 231. Chap. XXXIV Of the Fair of Lyons in France p. 233. Chap. XXXV Of Debt-Exchanges p. 236. Chap. Chap. XXXVI Of discounted or rescontred Exchanges p. 241. Chap. XXXVII Of conditional Exchanges or Bills of Bodomery p. 250. Chap. XXXVIII Of Exchanges pro forma p. 259. Chap. XXXIX Of Dry-Exchanges p. 266. Chap. XL. Of Bills of Exchange being lost p. 270. Chap. XLI Of Letters of Credit p. 288. Chap. XLII Of what is and is not to be done or what party concerned in an Exchange is and is not obliged to do in case any that are concerned therein should fail p. 293. Chap. XLIII Some select Cases collected out of Sigism Scaccia his Treatise De Camvio Commercijs p. 323. Chap. XLIV Of the execution of Exchanges p. 359. Chap. XLV Of the Par of Exchanges p. 363. THE Stile of Exchanges Rules of Exchange CHAPTER I. The Definition and Multiplicity thereof Rule I. THE word EXCHANGE in its largest Signification may be applyed to any kindof Change Rule II. In a more restrained and limitted sense it may be referred to all sorts of Traffique whatever III. But that kind of Exchange that here shall be treated of is yet taken in a more limitted sense and only referred to a Trading in or with Monyes IV. From the variety of Coyns and the manifold distinctions of Monyes those Coyns and Allays that are currant in one Nation being not currant in another and yet notwithstanding seeing almost all the world over all Trade must be driven with Monyes did this Trade of and in Monyes which we call EXCHANGE derive its Original V. This Exchange is two-fold viz. An Exchanging of Monyes for Monyes one Coyn or sort for another and a giving of Money upon Exchange for a Bill c. The former of these is
and to whom and for what Sum and desire him to accept the Bills of his Correspondent and signifie to him how he must place it to Account or be Re-imbursed by redrawing c. This he must do lest the Bills be drawn before the third Person have order from the Principal to accept them XXIII He that is fore-advised that he will be drawn upon ought instantly to return an Answer whether he hath taken notice thereof and will accept and honour the Bills or not XXIV In like manner if any give order to another to remit for his account to a third he must also advise the same third Person before the Remises come to his hands that he hath given such orders especially if the same are to be made at short sight and how he will have them disposed of and it s the Duty of this third Person to return an Answer That he hath received and will or will not observe his orders XXV If a Factor Correspondent or Principal c. advise his principal Correspondent or Factor That he will accept such and such Draughts for such and such Accounts but afterwards refuseth to accept those Bills and returns them on the Drawer with Protest it is but just and equal that he that promised acceptance and refused it should be oliged to make good all the Loss whatever it be and make satisfaction for the Damage done to the Credit of the Drawer XXVI If the Letter of Advice disagree with the Bill in respect of the Sum or the Sum exprest in Figures in the Bill with the Sum exprest at length in the body of the Bill yet that sum is to be followed that is exprest at length according to Marius his Advice and if the Accepter will not accept for that Sum the Possessor may and must Protest CHAP. VIII Of the Payment of the Value by the Remitter to the Drawer Rule I. IN Exchanging Credit must be given but the Drawer had need observe to whom he gives credit that he give not his Bills to him that cannot or will not pay the value and the Remitter had need observe whom he credits that he give not his Moneys to one that cannot or will not pay the Bills so that the one as well as the other must be careful and enquire into each others Sufficiency II. Bills are sometimes given by one who himself will discharge them sometimes are charged on a Debtor who is to discharge them Whereof afterwards shall be spoken III. The value of a Bill is ordinarily paid in ready Moneys and if the Drawer be satisfied with any thing else it is reckoned for and as ready Moneys IV. All Bills of Exchange that are negotiated or concluded at Amsterdam or Hamborough or any other place where a Bank is erected are payable in Bank if they exceed a certain limitted Sum upon Penalty that such Bills exceeding that Sum not paid in Bank shall be adjudged as not satisfied and of forfeiture of a certain Sum to the Bank besides by those that act contrarily nor must the Brogers suffer themselves to be employed about any Bills exceeding that Sum to be payable out of Bank or to act any thing to defraud or evade the said Statute and Order by dividing the sums and lessening them that they may be made payable out of Bank upon penalty of incurring the hazard of being suspended and deprived of their Office and Employment NB It is but reasonable and equal that in all places where a Bank is erected all Bills should be paid in Bank and so long as there was no difference betwixt Bank and Currant Moneys this order was observed at Amsterdam c. but in regard now at Amsterdam c. there is three or four in the hundred difference betwixt Bank and Currant Moneys in respect of the Value therefore it is scarce practicable now for Merchants and Shop-keepers to observe this order especially for those that have their Correspondence in the chief Cities of Holland Westphalia in Sweeden Denmark or other places on the Baltique Sea seeing all Bills to those places are concluded for and in currant Moneys because those that are Inhabitants in other places are only indebted to their Creditors in Amsterdam currant Moneys and do know of no Aggio or Vp-Moneys and would alwayes suspect to be cheated or over-reached if any thing of this nature should be imposed upon them but by erecting a Bank currant this inconvenience might be prevented V. Notwithstanding that ordinarily in Bills of Exchange it s said that the Value is received already yet ordinarily the Value is not paid by the Remitter to the Drawer till two or three dayes after the Delivery of the first Bill and may in time enough be paid by the Remitter at any time betwixt and the next Post VI. But a Remitter must not cannot delay the Drawer any longer than till the next Post unless it were expresly conditioned that some time should be given for the Payment of the Value if he do then may the Drawer forbid the Payment of his Bills and demand satisfaction of the Remitter VII If a Remitter condition for time for the Payment of the Value till he hath advice of the Acceptance of the Bills then is it necessary that he make those conditions with the Drawer himself and not relie on the Mediation of the Broger VIII If a Remitter hath conditioned not to pay the Value till he hath advice of the Acceptance he is if the Bill be protested for Non-Acceptance not obliged to pay the Value but if it be accepted though but by one whose sufficiency is suspected yet he is bound to pay the Value IX The Payment of the Value of a Bill drawn by A. as having a Procuration or full Power from B. must not be made to A. but must in Bank be writ to the account of B. as the Principal Drawer and A. must be obliged to make his full Power appear and so in the Name of the Principal must receive the Value and discharge the Remitter X. A prudent Remitter will not pay the Value of a Bill but upon an Assignation or Acquittance from the Drawer expresly signifying That the same is in Payment of the Value of such a Bill and this is to be observed as well in the Payment by Bank as in currant Moneys XI A prudent Remitter will not offer to pay by Cash or in currant Moneys what he is obliged to pay in Bank without Acquittance or Assignation because such Payment is not satisfactory and contrary to order XII If the Value of a Bill either in Bank or Currant Moneys be paid to the Drawer by any other than the Remitter for the Remitter's account or by his Order in case it appear not that such Monyes is paid to the Drawer upon the Remitter's account and by his order the Drawer would act very cautiously and prudently if he demanded a Note under the Payer's hand signifying By whose Order and For whose account he makes
Course of Exchange or no Rescount Or Secondly Because it may be more advantagious and profitable thus to negotiate Exchanges than directly III. Bills of this nature must be made first payable at the place over or thorow which we draw and to a Person dwelling in the place whereto the Remitter remits whether he be Factor Servant or any else IV. A Factor is one that serves another in Commission that observes his Principal 's order and acts according to his direction for which he receiveth Provision V. Provision is the Reward the Factor receives from his Principal placing it to his account for his trouble in corresponding and negotiating his Principal 's Affairs and in Bills of Exchange hazarding his Credit VI. Bills are negotiated for another when the Factor negotiates Bills in his own Name for the account of another and by another when the Bills are negotiated in the Principal 's Name by another in Commission VII Circumspection and Prudence is very requisit both in him that employes and in him that serves others in Commission and a Merchants principal care in Exchanges of this Nature especially is to see that he hath a sufficient and able person to correspond with whether he draw and charge his Bills upon him or remit his Bills to him and he must not only have respect to his Ability but to his Fidelity also for an Able but Knavish Correspondent may serve his own Ends with the Moneys his Principal hath provided for him to discharge his Bills with and suffer his Bills to return with protest as Shaw and Snawdon two English Factors at Hambrough lately did But VIII A Factor that hath a Cordial Real and Able Principal who doth not use to abridge him of his Provision is obliged to improve all his Abilities and Faculties in the true and faithful Service to him and should seek his Interest and Advantage as his own which the above-named Kn never did but if the Principal will not allow the usual Provision nor Postidge of Letters nor Courtagie c. doth force his Factor one way or other in the broad or the long to make up his Disbursements that he be no looser IX Factors are obliged to a due Correspondence and by the first Post to give an account what they have negotiated in their Principal 's Affairs with all the Circumstances thereof viz. the Sum the Course what Conditions and with whom X. A prudent Principal will require of his Factor though he hath credited him for the Bills negotiated all the Circumstances thereof and the Factor is obliged to advise thereof and in case he hath bought Goods not only to declare who is his Chapman but also in case he hath remitted Moneys for his Principal 's account whereof he hath not yet received the Bills to give an account who is his Drawer and so if he hath drawn who is his Remitter c. XI The Principal is obliged as soon as he receives advice of any Negotiation done for his account by his Factor to approve or disprove of the same But XII The Principal is not obliged to approve of all that his Factor doth but if the Factor hath exceeded or not followed his Orders punctually though what he hath done were never so prudently managed and with a good Intent and in design for the most Advantage and Interest of the Principal yet he may disprove of the same and if he can make any Damage appear he may make him allow of it But again on the contrary if the Factor hath followed Order and hath not transgressed nor exceeded his Commission then the Principal must approve of what is done by his Factor though it turn not to account but be greatly to his loss XIII The loss that is by Exchange or any other concerns if the Factor hath followed Orders strictly and punctually must be born by the Principal for whose account the Negotiation is And XIV Such a Factor that follows Orders does not amiss though he fore-see if he should delay or follow his own Conceptions it would be more profitable for his Principal and because Exchanges are as variable as the Wind and many times as if made do precipitate without any known Cause or Reason therefore a Factor must not exercise his Speculative Philosophical Faculty and Reason what is profitable or not for his Principal but must follow Orders precisely if he possibly can unless he certainly and absolutely know that it will be very prejudicial to his Principal so to do XV. So then Orders must strictly promptly and punctually be observed for if a Factor act without contrary to or above Order and his Principal approve not thereof the Negotiation whatever it was remains done as for the Factor's account and he must bear the loss thereof Yet XVI That known Rule Volge Order dort Qualick i. e. follow Order though to the Principal 's loss is not alwayes to be observed if the Factor see that by following Order he shall infallibly prejudice his Principal for else he deals not honestly with his Principal nor as for himself but makes it plainly appear that if he get his Provisions he cares not whether his Principal sink or swim and it s therefore best of all in such cases for the Factor not to perform the Commission but wait for second Orders if he can For XVII A Principal hath not alwayes regress against the Factor for the loss that doth ensue upon the not performing the Commission although the Facor hath promised to effect his Orders and could have done it But XVIII If he act any thing contrary to Order he is alwayes obliged to make satisfaction for the Damage and Interest c. Sigism Scaccia pag. 391. XIX If a Factor exceed his Order it s not in the power of the Principal to take so much of the Negotiation for his account as his Orders were and regulate the Affairs accordingly but he must either totally approve or disprove of what the Factor hath done and so either take all or none as it s done by the Factor XX. If a Factor transgress his Limits and Orders and give advice thereof to his Principal and does consent that in case he disprove of what he hath done the whole Affair and Negotiation shall be reduced to his Orders the Principal must content himself therewith and be silent XXI The Factor that can and will not act to his Principal 's advantage cannot have a quiet and peaceable Conscience neither if he can negotiate his Affairs under or above the course and limits that he hath given and so more to his advantage can he detain the advantage for himself XXII A Factor renders himself suspected if he do not advise his Principal of the true Course but makes his Bills in a Forreign Denomination of Moneys As for Instance At Amsterdam the custom is to exchange on Dantzick in Pounds Flemish at 216 Groshe Polish Money or else for a pound Flemish Now if the Bills made at Amsterdam be made in
spare him none but he hath Credit with E. F. of Amsterdam and he will serve his Friend with his Credit but A. B. and E. F. are utter Strangers one to another wherefore C. D. will value on his Friend E. F. such a sum of Moneys for the account of A. B. as he hath occasion for whereof he adviseth E. F. and assures him that he will be caution for the punctual Re-imbursement This method of Exchange is also practised in case A. B. is Debtor to C. D. and A. B. cannot conveniently pay the Moneys whereupon they both agree that C. D. may value on his own Correspondent E. F. with order to redraw the same on A. B. the Debtor IX Sometimes Bills are drawn for the account of a third by the order of a fourth As for Example A. B. of Antwerp hath order from C. D. of Madrid to draw for his Account on E. F. of Hambrough but A. B. of Antwerp finding no Rescounter orders G. H. of Amsterdam to value the said Moneys on Hambrough for the account of Madrid by the order of Antwerp which done he shall remit the Moneys to Antwerp or else A. draws on B. with order to reimburse himself by drawing on C. for the account of D. but such a Commission B. should not accept of unless A. oblige himself and when he draws on C. he must advise him that he draws by the order of A. for the account of D. and also give advice to A. and the account also but it s not necessary though this Negotiation be for the account of D. that B. should correspond with D. about it to which A. is obliged X. When a Drawer in Commission gives his Bills to any that do not punctually pay the Value he is then obliged to procure the Value by rigour and arresting his Goods and Person and may not give him any time or delay but upon his own risco and hazard no not a day longer than till the next Post XI If a Drawer in Commission give the Remitter any time for the payment of the Value and hath thereby any advantage in the course and placeth the advance to the Principals account then the Principal upon advice thereof is obliged by the next return of the Post to approve or disprove thereof and if he be not satisfied with the conditions he must let the Drawer have the advantage and answer his Principal according to the price currant XII A Factor that hath order to draw upon a third at sight does not wisely if he draw at any time XIII Above all he should observe not to draw after sight but alwayes after date or at a certain and fixed day XIV If a Factor hath order to draw on a third at price currant he must follow his Order though it be to the disadvantage of his Principal XV. A Principal must be content with the course his Factor hath concluded on though it be to his great disadvantage whether it proceed from the course of Exchange or from the Factors little credit XVI Sometimes it falls out that a Drawer having drawn in a disadvantagious course to the Principal does for certain Reasons advise his Principal of a better course than he got whereby he loseth sometimes more sometimes less than all his Provisions and as this is lawful so also it cannot be judged Knavery if the Drawer hath got a very high course if he place his Principal the price currant to account thereby to make good his loss but more not NB As this may seem disputeable so also doubtless it s still the best way to give the Principal an account of the Remgeltam and not otherwise For XVII Such a Factor renders himself suspected by his Principal for whose account he draws if he do not advise him the true and right course wherein he negotiated as also when he makes the Bills in another denomination of Moneys than is usual and customary for by so doing he can reckon the course afterwards as he pleaseth XVIII It s very advisable for Drawers in Commission that they procure the Acceptance of their Draught especially when on a third Person and not on the Principal directly without delay XIX When a Factor hath order to buy Goods and to draw the Costs and Charges or part thereof on a third Person and he knows not or doth not much confide in his Principal then its usual and customary for the Factor to correspond with him on whom he hath order to draw and know whether he will accept such such Bills for that Principals account or not and if he advise that he will accept he is not obliged to accept when the Bills come Nisi rebus sic stantibus or that he hath effects in hands XX. He that hath order to draw on one place and remit to another for the account of a third or to remit to one place and draw on another the said value for the account of a third he must not remit before he know that he can draw nor draw before he know that he can remit lest on the one hand he be in disburse on the other in cash for his Principal not knowing how to dispose of it which cannot but displease him and when he hath an opportunity to do both he must before he conclude make his calculation whether he can with the course answer the designs and limits of his Friend if he be limitted XXI When a Factor hath order to draw a just and limitted Sum then he must add to the Sum if it be to concl … an account c. Provision Courtagie Postidge and other Charges XXII In case according to Case 19. the Acceptant in Commission advise the Drawer in Commission that he will accept such and such a Sum for their Principals account and afterwards the Acceptant on the presenting of the Bills for acceptance utterly refuseth if the Drawer hath bought and ship't Goods there is no reason but the Acceptant should be compelled thereto because the Drawer had not bought Goods or remitted c. but upon the advice of the Acceptant and so he the Acceptant was the occasion of the loss Scaccia XXIII But if the Drawer hath not shipt the Goods nor is in any danger of losing upon that account then he can demand no more of the Acceptant than Rechange and Charges seeing he gave the occasion to the loss and reparation of his credit being he suffers by having his Bill protested Scaccia XXIV If a Principal order a Factor to draw and he having disburst Moneys for his Principal doth draw the Principal may be compelled to accept his Bills and pay them CHAP. XXVII Of Remitting in Commission and standing Del Credere i. e. being Surety therefore Rule I. HE that remits in Commission does either remit for the account of him to whom he remits or for a third Person and he either stands del Credere or not for the Remises II. Remitters in Commission must take special care that they
Acquittance wherein he acknowledgeth satisfaction for such an old Debt or such Goods in such and such a Bill of Exchange received or for so much of the Debt as the Bill of Exchange reacheth to VII And in such a case the Creditor if wise will demand a Recipisse or a Note from his Debtor wherein he confesseth the Receipt of the Value of such a Bill either in an old Debt or for Goods bought either for the full payment thereof or for lessening the said Debt VIII When a Creditor hath received a Bill from his Debtor in full or in part of his debt he must not be perswaded by his Debtor in case he at the day of payment be not punctual under pretence to lessen the Charges and not to disgust the Debtor not to follow the strict course and law of Exchanges by protesting c. nor should give the Acceptant longer time if he desired it unless the Debtor do give him under his own hand that if he do so it shall be no prejudice to him and this notwithstanding he shall have the Law in force against himself as if he had actually protested in due form and course for without this the Debtor might disown any such order or request made to the Creditor and in case he pay not set his Creditor at defiance as having neglected his time and right and he the Debtor is therefore not obliged to answer IX When the Creditor receives a Bill from his Debtor by him drawn on another in another place with request to demand the same and in case of payment to place it to his account in full or part of payment of his Debt then let the Creditor speak with the Debtor whether he shall draw or remit the product and also know of him by whom he shall cause demand to be made that in case of loss there may be no dispute X. The Bills that a Creditor makes himself upon his own Correspondent at the request of the Debtor when he cannot conveniently pay that which he should pay at the day of payment must be reckoned to be mixed or Debt Exchanges XI When it falls inconvenient for the Debtor to pay his Debt at the time and he desires a longer time promising satisfaction for the time if it also fall inconvenient for the Creditor to wait then usually if the Creditor be satisfied in the sufficiency of his Debtor at his request he may draw on his own Correspondent for his Debtors account with order to revalue the same at the day of Payment on his Debtor XII If a Creditor draw thus for the account of his Debtor he ought to the end the Debtor may know what Sum he is to pay for the Re-change make those Bills single and apart for the just Sum that his Debtor must pay or at least order his Correspondent to keep an account of such a specified Sum apart and to revalue the same XIII And to distinguish the account apart the Creditor or Drawer usually orders the Acceptant to draw on the Debtor with his obligation or upon himself for the account of the Debtor XIV It s also usual that one Friend to pleasure another draws on his Correspondent per Cento apart for a seperate account and to be kept apart that the Friend may have the use of the Monyes till the time of the payment of the Re-change XV. In all cases the Acceptant looks upon the Drawer who must answer for the Draughts and Re-draughts but the loss by Exchange and the Charges must come to the Debtors account or to his account whom to pleasure or for whose account the Bill was drawn CHAP. XXXVI Of Discounted or Rescontred Exchanges Rule I. IN a real compleat Exchange there is usually four several Persons concerned as the Drawer the Remitter the Acceptant and the Possessor of the Bill but in a Discounted or Rescontred Exchange the Drawer and the Remitter may be one and the same Person and that in four several cases As 1. When he hath to draw and to remit both together from and to one place and both for his own account 2. When he hath to draw for one and to remit for another 3. When he hath to remit to one and to draw for another account And 4. When he must draw for another and remit for a thirds account II. He that is Drawer and Remitter both for his own account and draws on one and remits to another Correspondent may make and calculate the course of Exchange in his Books as he pleaseth and need give no man any account thereof but he that Discounts for anothers account either way must without delay either advise his Correspondent or his Principal or both the true course of Exchange as then it was effectually agreed on at that time on the Exchange and in case the Course hath either greatly advanced or declined that day then in equity he ought to allow his Principal the middle Course III. In a discounted Bill where the Drawer is the Remitter also he ought to express the same in these words The Value in my self but if he will not that the Acceptant should know so much then he may make the Value of any other advising the Possessor that he himself is the Remitter and the other Name is but added pro Forma IV. If any draw or remit for anothers account who is not named in the Bill it s not necessary to advise that the Value is discounted V. He that discounts in himself and gives advice thereof whether it be done with or without a Bill in Formâ neither may nor can re-call the same without the consent of those that are concerned VI. He that hath an opportunity to discount may place Courtagie to his Principals account though he pay none and so if any stand good for the Remises or ordinarily hath done may also place usual Provision to account though he run no risco or hazard VII One and the same Person may in divers other respects represent two or more Persons in Exchanges for he can be 1st Drawer and Possessor 2dly Drawer and Acceptant 3dly Remitter and Possessor 4thly Possessor and Acceptant 5thly Drawer Remitter and Possessor VIII When any makes Bills payable to himself or order he is both Drawer and Possessor of the Bill till he draw it in or endorse it Scaccia The stile of Merchants hath introduced this Custom contrary to the Axiom of the Common Law that a man may pay to himself IX But Drawers seldom make Bills payable to themselves when he they draw upon is with them or they themselves with others in good Credit X. Great Prudence is to be used in negotiating Bills payable to the order of the Drawer because such Bills are usually drawn on those that begin to halt and are accepted before they be drawn in and the Drawer makes use of them to furnish himself with Moneys in a necessity XI He that makes Bills payable by himself and accepts of the same to
absolutely obliged to the performance of the Condition it s not enough for him to mortifie the Bill and not demand Payment thereof but he is obliged to make good to the Acceptant the Loss and Interest that the Acceptant or any other concerned therein for Non-performance of the Condition is likely to suffer VI. When the Possessor of a Conditional Bill is not absolutely obliged then if any thing happen without the Possessors fault that may hinder him from performance of the Condition this does not alwayes free and discharge the Drawer or Acceptant but he is in such a case obliged to pay the Bill though the Possessor do not perform the Condition if he will but make good the loss to the Acceptant or Drawer As for Example A. lives here and contracts with B. dwelling at Venice That he shall provide him a Pack of Says which Pack the said A. shall buy for the account of B. at the lowest Price but shall send them to Venice on his own Risco and shall have for his Provision 2. and for the disburse of his Monyes and the Risco 15. per Cent. but B. shall be obliged to pay the Costs and Charges and the whole Product eight dayes after the arrival of the said Pack of Says at Venice This all agreed upon and done the Pack of Says is Shipped and the account thereof sent and A. at the same time values upon B. the whole Sum and makes the Bill as followeth Amsterdam Octobris 23. anno 1680. per Ducat EIght dayes after the arrival of the Pack of Says No 1. as in the Margent at Venice pay upon good delivery for the Value of the same to C. the Sum of Ducats adiea A. To B. in Venice Now when B. accepts the Bill then he is obliged upon the delivery of the Pack to pay to C. the Sum exprest in the Bill though the Says should fall considerably in Price before that time But if the Says are lost at Sea and never arrive then the Acceptance is null and void and the Bill is mortifyed and if they are damaged only and do arrive then B. must receive them and pay the Bill he accepted but he must deduct from the Value as much as impartial Merchants shall judge the damage may be esteemed at because A. is considered as the Insurer VII Amongst conditional Bills Bills of Bodomery may be reckoned that is Bills that are made upon the Keele of the Ship which are accidentially conditional in regard it s not in the power of the Possessor but only depends on Providence to give a Ship a prosperous Voyage VIII The Bodomery-Bills that are usually made at Smyrna and other places in the Levant wherein the Shipper acknowledges the Receipt of such and such Goods into his Ship from A. to deliver the same upon safe arrival to B. and that the said Goods are incumbred with a Debt of a 1000 Reals upon Bodomery at so much per cento the value received of C. payable ten dayes after the arrival of the Ship To D. for his own Account 300 Reals To E. for the Account of F. 300. To G. for the Account of H. 400 Reals This being underwrit by the Shipper is as much as a conditional Exchange which if B. accept then he is obliged to make good and pay the Sum and may receive the Goods paying the Shipper his Freight and Avaridge but if there be extraordinary Avaridge or if the Goods be damaged then the Sum of the damage and of the extraordinary Avaridge must be deducted from the Sums that D. E. and G. are to receive they being as Bodomerers or Assurers IX They to whom Goods are addressed that are incumbered with Bodomery are as little obliged to accept of the Bodomery-Bills as an Acceptant is obliged to accept Bills drawn upon him but if they have once accepted they are then according to the Law of Exchanges obliged to make punctual Payment at the day appointed X. If any to whom Goods burdened with Bodomery are addrest refuse to accept the Bodomery Bills then the Possessors of the Bills are obliged to make Protests for Non-acceptance and then may request the Magistrates to authorize him to receive the Goods and to sell them and dispose of them to him that will give most or that they may be put into the Hands of another to be disposed of that out of the product of the Goods the value of the Bodomery-Bill may be satisfied but they must have a care of acting any thing in this matter without the Authority of the Magistrate nor must they without his Authority admit any other to honour the Bills and receive the Goods and dispose of them at his pleasure XI When all this is done by the authority of the Magistrate as above is declared and there is found to be more made of the Goods than was required to the discharge of the Bodomery-Bills then that may remain in the Hands of the Person that had the Goods in disposal or be paid into the Hands of the Magistrate for the use of the true Owner of the Goods But if there be short of what the Sum in the Bodomery-Bills requires then the Possessors of the Bills have no Redress upon him to whom the Goods were addressed nor upon the true and proper Owner thereof no not upon the Factor or Loader of the Goods or the Drawer or Receiver of the Moneys paid upon Bodomery unless he hath by a special Contract obliged himself thereunto XII Among conditional Exchanges may be reckoned those Bills that are given upon account of any Wager made or for the assurance of things that are yet in dubio XIII Bills made upon account of a Wager c. are either single or reciprocal and mutual XIV Single are they when one gives Moneys and the other receives it at the same time accepts a formal Bill of Exchange payable to him that gave the Moneys for the payment of a greater Sum than he received at the day of Marriage or at the surrender of such and such a Belsagured City c. or at any other uncertain and dubious event XV. If in the case of Wagers if Moneys be not given by the one and received by the other the Law allows no advantage against him that gives the Bill but if he have received Moneys then he is obliged to repay the same with Interest and no more XVI Conditional Exchanges for assurance are two-fold for some tend to the Security of the Drawer or Remitter some to the Security of the Possessor XVII Conditional Exchange that is for the Security of the Drawer or Remitter are such Bills as an Out-dweller makes or causeth to be made for the discharge of other Bills by him accepted which must be paid in another place or such as any man makes to discharge Bills drawn but protested for Non-acceptance or if accepted for Non-payment if the Drawer had timely notice of his Acceptants failure or that he would not pay XVIII
to debit the other for must be adjusted 10. If the Possessor of a Bill fail before or after the Bill is due and the Acceptant hath yet in hands or sees and knows where to get another accepted Bill payable by the Possessor or a protested Bill for Non-acceptance drawn by the Possessor which will fall due before or soon after the Bill the failed Possessor had payable by the Acceptant c. Quaeritur Whether in any or all or none of these Cases and in which Resconter or Discount hath place LII Merchants that fail not on design to defraud their Creditors or to enrich themselves by their losses neither occasion their own failing by their negligence or Riotous living but have lost their Estates by cross Providential Dispensations immediately as by Fire Water Shipwracks Wars Pyracies c. or mediately by the Knaveries of Wicked Correspondents and Factors c. are greatly to be pitied and not to be persecuted with the Rigor of the Law But those that are Knavish or have spent their own and others Estates in profligate and debauched living deserve to suffer the utmost Extremity of the Law as Thieves and Robbers Scaccia LIII Honest Merchants that fail will judge themselves in Conscience obliged to make their Creditors satisfaction Quando ad pinguiorem fortunam pervenerint and will use all endeavours to do it though they have compounded with their Creditors and the Creditors have for part received wholly discharged them and this is the Testimony of their honesty when they will pay though the Laws of the Land cannot compel them Scaccia LIV. Decoctus says The Law Est quasi Mortuus which may be applied to many cases in respect of Exchange and what a Possessor or Remitter are obliged to do if the Acceptant or Drawer fail the same they are obliged to do if they dye if they procure not Payment Scaccia LV. If the Possessor of a Bill dye and there are none that can lawfully receive Monyes nor give a satisfactory Discharge and yet some should appear as Heirs or Assigns or Executors to enter a Protest of Non-payment then the Acceptant must advise the Drawer of all the Circumstances and he must consult with the Remitter and give further orders or he may deposit the Sum in the hands of the Magistrates to be reserved by them for the true Owner Scaccia LVI If the Possessor of a Bill protested should agree and compound with the Acceptant and the Drawer be the Acceptants Debtor for the Sum he accepted though the Drawer be thereby discharged from the Remitter and Possessor and that Acceptant also yet the Acceptant can debit the Drawer for no more of that Bill or Bills than he effectually paid according to the Composition Scaccia LVII But if the Possessor hath made this Composition with the Acceptant without the Remitters order and consent the Remise being for the Remitters account then the Possessor will be liable to answer the whole Sum to him Scaccia LVIII If the Drawers or Endorsers being failed deny that the Bills they have drawn and endorsed and the Acceptant hath accepted were for effects of theirs that the Acceptant had in his hands or that they have since or before acceptance made him provision for the discharge thereof they must at their Creditors request prove the same Scaccia CHAP. XLIII IN this Chapter shall be added some select Cases collected out Sigism Scaccia his Treatise De Camvio Commercijs Glassema Primum Case 1. VVHether it be necessary that Bills of Exchange be made Answ Affirmatively but not because they are de Essentiâ Contractus but only in respect of better Proof of the Contract and that Execution may more easily be obtained upon them Therefore Regularitur they are necessary Case 2. Whether ought the Remitter to give the Monyes to the Drawer or the Drawer give the Bills to the Remitter first de jure Answ The Remitter who is as the Buyer must give his Monyes first for Good bought for ready Monyes need not be delivered till the Monyes be paid 2dly The Bill sayes expresly The value received and there is danger to the Drawer to give his Bills away before the value be received But 3dly Rather than there should among Merchants be any dispute about this let the Drawer give the prima Bill to the Remitter first and keep the secunda Bill till he receive his Monyes Case 3. Whether it be necessary to begin a Bill of Exchange or any other publick or private Instrument with Laus Deo or Signum Crucis as the Papists usually do Answ No for it is but a superstition which the Law takes no notice of neither is it of the Essence or Substance of a Bill of Exchange or other Instrument and though it be used by many and the Italians as the Author and others that he quotes assert the necessity thereof as grounded upon Custom and as a Note of Distinction betwixt Christians and Heathens yet its certain as the Author confesseth no stress was ever laid upon it and I am bold to add That it is Superstitious and more a Prophaning than an Invoking of the Name of God Case 4. Whether is the Date of a Bill of absolute necessity so that without it the Bill is void and of no effect and here first whether the Year must be specified Answ 1. It s not so absolutely necessary de jure but it s yet de consuetudine that hath obtained the force of Law absolutely necessary so that the Omission thereof doth vitiate a Bill of Exchange besides in Bills of Exchange time is de Substantia Contractus And 2dly Whether the day of the Moneth must be exprest The Answer is still the same for how should Usance be reckoned if this be omitted if Usance be after Date c And if the Bills shall prove for the Drawer in his favour the true date must be added otherwise though the Possessor should not protest his Bill in time and the Remitter come and desire restitution upon that Protest if the Acceptant was the Drawers Debtor and failed or in any such like case the Drawer may thank himself if the Date were omitted it will prove against him not for him nor can he on this account refuse to make Restitution Nor can the Acceptant upon this account by the same reason refuse acceptance and payment but such Bills may as effectually be protested as if they were dated Nor can the Notary Publick upon this pretext refuse to make a Protest and the reason is this The date of the Bill is not de jure so Essential that the Omission thereof should make it utterly void for the Body of the Bill will prove the Coutract against the Drawer and against all else concerned in it in favour of the Remitter and Creditor And yet if the Acceptant refuse to accept an undated Bill he doth well and cannot be prejudiced yet may safely accept it if he please without any fear of Prejudice to
who pays his Bill in this kind whether it be the Debtor himself or 2dly any other by his order and in his Name or 3dly without his order supra Protest in honour of the Bill or 4thly without either Order or Protest if any be so foolish the Creditor may from any of these safely receive his Monyes and transfer his Action if he please 5thly yea if any will pay against Order But on the contrary To a full discharge of the Debtor is required not only a surrender and delivery and a Discharge or Acquittance upon the Bill but he must observe to whom he pays and Payment in respect of the Debtor is only good when it is made 1st To one sufficiently authorized and qualified to receive and discharge as he is 2dly To whom it is orderly last assigned and endorsed or 3dly To him with whom the Contract was made if there be no Endorsments or 4thly To him for whose account the Bill is or 5thly To a Servant of any of these who hath ordinarily for his Master received Monyes and given Receits whereof the Masters hath approved or 6thly To the Executors or Administrators or 7thly To any that the Remitter and the Drawer shall agree upon in case they revoke their first Order if the Bill be for the Remitters or for any thirds accounts for then though it be orderly assigned and endorsed to another who is only as the Remitters Factor if the Remitter forbid the Acceptant to pay him he must not pay but upon his own hazard but must pay to him whom the Remitter orders concerning this see Chap. 16. To all which may be added that if the Acceptant pay mala fidei Possessori ignorantly that Payment is good if the Bill otherwise in all its Formalities be perfect c. Improper Payment hath all the Effects and Virtue of a Proper Payment though it be not made in a precise Species nor according to the tenor of the Bill yet it discharges the Debtor as effectually only the Creditor cannot be compelled to take this as he may be to take the other and it must be made only to the true Owner of the Bill to one that hath his order to accept of such payment else it is not good nor sufficient nor will the Debtor be thereby discharged if the true Owners order hath only a simple order to receive Payment and not positively such payment because no order of the true Owner and Possessor of the Bill hath power to alter the tenor thereof whereas if the true Owner resconter or order his Order so to do or take payment in Goods or otherwise in Words declare himself satisfied or order him to satisfie any other for the Value or to Resconter with any other though there be in all this no actual payment of Monyes in Specie yet the Payment is good Case 3. A Possessor hath several Bills upon one Person and they all fall due near upon one time part he pays and the other part he pays not till a day or two after yet within the Respit dayes in the mean time he fails and cannot pay at all the Question is for whose Accounts that shall be that is paid or whether the Receiver hath power to place it to what Accounts he pleaseth Answ 1. If the Debtor express and declare on what account he pays if the Creditor or Receiver be silent and so receive it it must necessarly be for that account yea though there remain another Sum then due for which the Drawer had given Security and so it may seem to be paid in prejudicium tertij yea and though the Creditor had engaged not to act against the Surety till he had first excused the principal Debtor and as on one hand the Surety cannot justly complain of the principal Debtor for so doing because it was in his power to do with his own as he pleased at that time and so pay for what account he would so neither can it on the other hand in favour of the Surety or of the Creditor be altered though the Debtor himself consent because when once paid it is no more the Debtors nor hath he any further disposal over it nor can it be said that the payment was made to defraud the security because the payment was Real and upon a real account But if the Creditor had acted at Law against the Debtor and procured execution against him and so had seized on his Effects and exposed them to sale to pay himself then the case is otherwise for then the Debts for which there are Sureties or Pledges given must first be discharged or else the Creditors do not as they would be done to 2. If the Debtor be silent when the Creditor says he receives for such and such accounts then such payments must be for such accounts because it s presumed that the Creditor herein acts as if he himself had been Debtor 3. If one of them chuse and the other in that moment contradict the Debtors choice must be preferred and if the Creditor will not receive for those accounts he should not receive at all or if received he ought to make restitution or place it to account as the Debtor would have it 4. If both be silent as to the accounts the the Monyes is paid and received upon or if they would defer it till another time to resolve upon which cannot lawfully be admitted then the oldest Debt must first be satisfied and if they are alike old then causa Durioris must be preferred because it s most necessary as if any Surety be engaged for the Debtor in this case it would be very hard that he should suffer Yet 5. If the Debt be for Interest and Principal and the Debtor pay any Monyes upon that account though the Principal be heavier yet the Law always supposeth that the Interest must first be paid because men usually gather the Fruits before they pull up the Tree So also 6. If there be a Surety for one part of the Debt and a Pledge for the other though neither in this nor the former case the Debtor nor the Creditor speak not a word about it or though they do speak yet the Law presumes that the Monyes paid is first to discharge that part for which there is security given and not for that for which there is a Pledge because the Creditor can sell the Pledge when he pleaseth and so pay himself Case 4. Whether Prescription be good Payment And how soon a Bill of Exchange may be prescribed Answ Prescription is improper Payment yet being it hath the effect of a Real Payment sometimes we must therefore enquire How soon a Bill of Exchange may be prescribed And to this is answered That accepted and duely protested Bills or protested for Non-acceptance can never be prescribed if demands be constantly made but if a palpable negligence or silence can be interpreted for consent and that out of such a Consent Prescription can arise especially the
Creditor knowing what the Law in these cases is and having frequent opportunities to make demands or to puruse at Law for Non-payment or if such a consent imply a Renunciation Remission or Satisfaction then we cannot suppose that any long time is required to prescribe a Bill of Exchange and the Law presumes That when a Debt may conveniently be demanded but is neither demanded nor protested that then it is paid and if it were not thus there would be no end of Controversies and Disputes among Merchants for they many times when their Bills are paid either negligently or in confidence of their Creditors honesty leave them in their Creditors Hands And here observe That as to the ready Execution that Bills of Exchange are priviledged with when protested if not presently extempore put in execution when they conveniently may is in so far prescribed that they then signifie no more than any other ordinary Bills or Bonds which must be sued for in the ordinary Methods Case 5. If a Creditor upon any pretence refuse to receive the Monyes due upon a Bill of Exchange c. What is then to be done Answ Deposit the Value in the hands of the Magistrates of the place or any other sufficient Persons upon the account of such a Bill and this shall be accounted good payment and discharge both the Acceptant and the Drawer if it be according to the tenor of the Bill Case 6. If the value of Monyes be inhanced or depressed between the making and dissolving the Contract by Payment whose shall the Profit or the Loss be Answ The value of Monyes may be inhanced or depressed two wayes Intrinsically and Extrinsically As to the Extrinsick value of Monyes the loss without Controversie is the Creditors and the Profit also is as is asserted in the sixteenth Chapter fourteenth Proposition But as to the Intrinsick value of Monyes if in this interval of time it be inhanced or depressed if it be of a worse or a better allay of greater or lesser Prize then the Debter must pay according to the value of the Monyes at the time of making the Contract and if any of the old Species of the old value be to be had he should pay in that Species whether it be to his profit or to his loss and the reason is clear If I borrow any Commodity to pay again in Specie both the Extrinsick and Intrinsick Value thereof must beconsidered As for Instance I borrow of my Neighbour ten Quarters of Wheat the Quarter being then valued at 40 s. Now when I would pay my Neighbour his Wheat again if what I will pay with be not so good as that which I received which is the Intrinsick value there is no reason but I should proportionably give him again more than the ten Quarters and if my Wheat be better there is no reason but that proportionably so much less should be restored I allowing him the usual lawful Interest of his Monyes for the time so also as to the Extrinsick value supposed that the Wheat I will pay with be as good every way as that I received but what then was bought for 40 s. per Quarter may now be worth 50 s. or it may be is fallen and worth no more than 30 s. if the Debtor then pay the quantity he is discharged nor respect being had to the Extrinsick value the Profit loss thereof being the Creditors as before was said only let me here add that we only speak of Bills of Exchange here which suppose Punctual Payment whereas if a Debtor should from time to time put off and delay Payment after its due there is no reason but if there be Loss he should bear it and if there be Profit that the Creditor should have it because he himself the Debtor is in fault Case 7. If a Creditor of a Bill of Exchange do receive of his Debtor or of the Debtors Debtor or of any other at the Debtors instance other Bills of Exchange payable at the same time by other Persons if these Persons pay not Whether is the Debtor discharged or no Or suppose for Instance I owe you 100 l. Sterling upon Bills of Exchange and Titius owed me an 100 l. Sterling upon Exchange also Wherefore I desire Titius to make and give you Bills of Exchange payable at Amsterdam for the Value which you accept of and discharge me But before these Bills are paid the Person they were drawn upon fails The Question is whether this Discharge be good or no and you must only seek your Regress upon Titius c. Answ The Discharge is good and you can only seek your Regress against Titius for here is a relinquishing the first Debtor and a taking of another in his stead which is a Novation which doth alwayes extinguish the first Contract On this occasion we may speak shortly to five Cases more of this Nature 1. I am your Debtor and Ceulus his Creditor and I assign you upon Ceulus to receive your Payment ordering him to pay you Ceulus being then absent you receive my Assignation and deliver me my Bill c. Am I then discharged if Ceulus pay not Answ No for here is but a simple cessio Nominis and that of one that is absent and therefore does not accept of the Payment and this is not an Assignation properly and therefore no Novation it s but an order to receive it in another place and is therefore no Payment and therefore I still remain obliged if you have been diligent in demanding Payment and could procure none 2. Suppose Ceulus were present and did then accept of the order to make Payment or afterwards doth accept and promise to make Payment and you consent to take your Payment of him Am I then discharged if Payment follow not Answ In the Affirmative because here is an Assignation properly which is more than cessio Nominis because of the consent of the Parties and is indeed a Novation qui delegat solbit in this case because Dat nomen debitoris in solutum and here the first Debtor hath no more to do than to prove his Debt unless he also obliged himself for his Debtors sufficiency which condition doth alter the case c. 3. Suppose I am your Debtor and order Ceulus my Cashier to pay who promiseth to do it but before he pay he fails am I then discharged Answ The hazard is still the Creditors for whether the Cashier were my Debtor or not it s still an Assignation which discharges me from you for another having undertaken to pay my Debt and my Creditor being therewith satisfied what more can he pretend of me my Cashier being alwayes supposed to have ready Cash of mine in his Hands when he undertakes to pay my Debt and the Creditor may blame himself if he did not timously enough receive it from my Cashier But here is an exception If it can be proved that the first Debtor was conscious of the designed failure of his Debtor
or Cashier on whom he assigned then the Payment is not good 4. Suppose I am your Debtor and I order my Debtor to pay you and he pays not but promiseth to do it Whether is this my Debtor discharged from me Answ In the Affirmative and is only obliged to my Creditor till he pay him for this is the nature of an Assignation to loose the Assignor from the assign and the assigned upon and the Obligation remains only betwixt him on whom is assigned and him to whom he is assigned to which may be added the Considerations in the second immediately foregoing Case with which the common practice agrees and if this Assignation will discharge me from my Creditor much more will it discharge my Debtor from me 5. Suppose I am your Debtor upon a Bill of Exchange and I cannot pay in present Monyes but give you Security in Goods in stead of present Payment promising to pay within a certain time or else that you shall keep the Goods for Payment whereof you accept the time of Payment being come you not being desirous to keep those Goods desire Payment in Monyes to which I reply That I am not obliged to do that because we agreed if I paid not within that time you should keep those Goods for Payment Which of these have the better Law Answ Some say the Debtor hath the better case because here is a clear and exprest Covent and Contract and these must be observed besides that in alternativis Electio est debitoris as the Law says Others say the Creditor hath the better cafe because this giving of Goods in Payment was only for Security in case the Debtor should not be able to pay and it was the Creditors Courtisie to accept hereof or if the Debtor think he did the Creditor a Courtisie then he ought not now to make it turn to his Prejudice and Loss Besides it s well known that he that hath a Pledge for a Debt may if he please sell the same and pay himself if the Debtor redeem it not within the appointed time And all this serves to confirm what was before asserted Case 7. Case 8. But if I give you 100 l. Sterling on Exchange you make me Bills of Exchange payable by Peter if Peter fail before he pay his acceptance signifies nothing and I can compel you to pay me if I duly make Protest Answ In this case this acceptance of the Bills hath not bim et effectum solutionis and this is the common ordinary case far different from that 7th Case foregoing for here is no Assignation or Novation for this is all this whole one and the same Contract whereas in the other there seems to be a new contract destructive of the former nay it s not so much as Contractus cessionis which supposeth the Acceptant to be the Drawers Debtor alwayes and if it were yet here is no mention made of any such Contract wherefore these Bills are only a bare order to the Acceptant to pay and the Possessor is in this as a Messenger and Servant to demand payment only wherefore this being consonant to the common and ordinary practice of Merchants was never doubted of Case 9. Tullius of London gave 100 l. to John and Francis who gave him Bills to receive the value at Amsterdam payable by Francis to Mark Tullius having received the Bills incloseth them in a Letter of Advice directed to Mark and throws the Letter into the Post-house this Letter of advice and Bills were intercepted by an unknown Person who in Mark 's Name having counterfeited his hand goes and receives the Monyes of Francis of Amsterdam Tullius not knowing whether the Bills were paid or not and afterwards advised that Mark never received any such Bills he sent him other Bills which he procured of John and Francis for the same Sum which received Mark demands payment of Francis of Amsterdam to whom Francis Replys That he had already paid the first Bills whereupon Tullius being advised thereof demands restitution of John and Francis or else order them to be paid This John and Francis refuse to do alledging them to be paid in this case the doubt is whether John and Francis of London must be alternative condemned either to make restitution or order the Bills to be paid and whether they remain Debtor to Francis who paid before upon their order or whether Francis must seek his regress on him to whom he paid truly or whether John and Francis of London and Francis of Amsterdam are all discharged only John and Francis must transfer to Tullius actionem furtevam against him that received the Monyes Answ John and Francis must alternatively be condemned as above and do not remain Francis of Amsterdam his Debtors for what is paid by him nor can they be molested by him as having paid nothing by their order to their order so that Francis of Amsterdam must seek his redress on him to whom he paid The Reasons are these 1. John and Francis are Tullius his Debtors till the Bills be paid to him or his order 2. Though Francis of Amsterdam will endeavour to defend himself alledging that he paid to one whom he had just ground to believe was the true order of John and Francis and that therefore upon his transferring of the action to Francis he must be said to have paid well for he paid to him that presented the Bills and did assert that he was that Mark nominated in them and he knowing the Bills to be really the Bills of John and Francis he therefore paid bonâ fide and it was not for him to suspect the Bills to have fallen in wrong Hands the Remitter should have better looked to them c. Yet all this and as much more will not excuse him For this just ground of believing him to be the true order of the Drawer will only excuse the Debtor and Acceptant if the Debt be of a certain individual species or thing not if the Debt be in genere seu quantitate for he that is indebted any certain thing is discharged if the thing be lost non interveniente dolo vel calpâ and so also upon the delivery thereof bona fide facta but in the paying of a certain Sum of Monyes it s otherwise Besides Francis of Amsterdam was ordered to pay to Mark not to the Bearer and by paying to him he exceeded the limits of his Commission nor did he use that diligence which he should and would have done in his own case seeing he would not but suspect and know that such cases do often happen or at least may and he should not pay but to a certain and known Person wherefore he being faulty his Negligence can Prejudice none but himself Object But if John and Francis demand Restitution of the Bills when Tullius demands Restitution of the Monyes for Francis of Amsterdam will not part with them Answ This notwithstanding John and Francis must make Restitution for the Bills
are in the Hands of their Factor and Correspondent and he must seek them there Case 10. That an Acceptant may accept supra Protest either in honour of the Drawer or in honour of some Endorser c. and thereby oblige him for whose honour he accepts c. is before declared But suppose Tullius is indebted to you 100 l. Sterling and to me as much and Tullius writes to you That he will remit into my Hands the 100 l. for you and order you to draw the same upon me which Tullius also doth and orders me to accept your Bills whereupon you value upon me but though I have received the Monyes to answer your Bills with he being indebted to me I keep the same for my own account and accept your Rills supra Protest in your honour In this case do I oblige you the Drawer for the Value paid by me c. Answ Yes this I may lawfully do though I received the Monyes positively with that order to answer your Bills for the Value which none will deny that are acquainted with the Merchantile Stile especially if I fear my Debtor may fail yet no wise Merchant would thus disoblige two special and sure Friends But in this as in all other cases of this Nature he that would keep the Drawer obliged for that Draught or any other Endorser he must after the Protest is made and compleated write upon the Bill Accepted supra Protest in honour of such and such a one And 2dly He must pay supra Protest also or else it will be judged that he receeded from the first Protest and accepted and paid freely and simply 3dly Aâ— the due time he must redraw the Sum and the Charges on him for whose account he accepted if other Provision be not made before that time 4thly None may accept supra Protest in honour of any till the Person on whom the Bill is directed hath absolutely refused both freely and supra Protest to accept And here by the way observe â— 5thly That if the Possessor will not accept of the Acceptants acceptance supra Protest that he resolves himself freely to accept thereof and he also must refuse it before any third can be admitted But 6thly If any man publickly declare and proclaim That such and such Bills should not be accepted having special Commission for that end then no man may accept or having accepted may not pay the same but at his own Peril and Hazard neither freely nor supra Protest For 7thly If the Drawer be failed or suspected to be near failing if any pay or accept they do it either in their own or to the Prejudice of the Creditors Case 11. You at London give to Vivianus 100 l. that he may give you Bills payable for the value at Amsterdam Vivianus agrees and gives you open Letters of Advice which you send to Peter at Amsterdam Peter watching an opportunity falsifyes the Bills and for 100 l. demands 2 having made 1 2 or made the Cyphers into a 6 or a 9. and so demanded 160 or 190 l. or 200 l. for 100 l. The Question is who must bear this Loss Bergonzus that paid the Bill because he paid not well or Vivianus that did express the Sum clearly enough in fair Characters or you who chose such a Knave for your Correspodent Answ Here two Cases must be distinguished 1st If the Falsification were palpable and evident and easily discernable with half an Eye then the Acceptant and Payer must bear the Loss because he did not diligently observe those Figures when he paid and his own Negligence can only Prejudice himself not another yea if there were but any ground of suspicion that the Figures were altered it s still the same but 2dly If the Falsification were so neat that it could not so easily be discerned nor suspected then the Acceptant pays well and will be discharged both from the Remitter and the Drawer and the Acceptant may seek his re-imbursment from the Drawer and the Drawer must seek his from the Remitter he making no Objection at the Receipt of the open Letters for the badness of the Characters c. the Fault is his Case 12. As an Objection against this Suppose then any should Counterfeit my Hand and by that means receives Monyes of my Correspondent as by my order Answ Suppose it be never so neatly done that no man could discern no nor I my self that it was Counterfeit yet I am not obliged to allow my Correspondent such Payments because I never desired any such thing of him nor never made any such Bills nor writ any such Letters of Advice wherefore Acceptants must be very cautious in paying and for preventing such Frauds Merchants should in all their Letters of Advice reflect upon somthing that hath lately past between them Case 13. If a Remitter in Commission give Moneys to a Drawer who gives him Bills and afterwards before the Bills are paid or accepted fails Whose shall the Loss be the Remitters or his Principals Answ If the Remitter remitted or was ordered to remit upon his own del credere he standing good for the Remises the case is clear that he must bear the Loss and though he may object that he remitted but not upon his own del credere yet it will not excuse him for he should not have remitted at all if not according to express order But 2dly If he were only simply desired to remit then the Loss will be the Principals unless 3dly The Remitter contracted with one that was suspected and reported to be near failing then he not acting for his Principal as if he had acted for himself and he must therefore bear the Loss and though there were no other Drawer with whom the Remitter could contract yet he ought not to have put his Principals Effects in hazard for neitheir thus must an Acceptant pay to one that is near failing though the Principal hath ordered it not knowing thereof for even the Letter of Attorney to receive for another is ipso facto revoked without any other further intimation thereof and thus also would it have been if the Remitter had express order from the Principal to contract with that Drawer For other Cases of this nature we refer to what is before hinted c. Glassema Quartum This my first Bill c. Case 1. VVHether will an Acceptant be discharged or may safely Pay when there is but one prima or secunda Bill presented to him Answ He may and must Pay though at the day of Payment none but his accepted Bill be offered to him for the command is that the first or the second Bill should be paid if neither of them were paid before 2. They are all were they never so many but authentick Copies of the first and one paid the rest are null and void 3. The Reason that more then one Bill is made is only for the better security of the Remitter and is no disadvantage to the Drawer and are